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Alternative Bail System Tested in San Diego County

San Diego County is testing an alternative system where monetary bail is not the primary basis for deciding who stays in jail. NBC 7's Investigates' Mari Payton explains. (Published Tuesday, April 24, 2018)

For those with enough money or property, making bail is only an inconvenience. But for thousands of other Californians, not posting bail could mean they can’t work or care for their families.

Even if they are never convicted of the crime of their arrest that time in jail can increase the cycle of poverty.

A Human Rights Watch report released last year concluded that “California’s system of pretrial detention keeps people in jail who are never found guilty of any crime.”

The report is a criticism of the state’s monetary bail system and of those involved in the system, who the report said are “not in it for justice.”

In addition, Human Rights Watch said that some “judges and prosecutors use custody status as leverage to pressure guilty pleas.” All of these dynamics are part of a growing movement to change the monetary bail system in California and across the country.

On the other side, advocates for crime victims and the bail industry said bail reform would put more of an emphasis on criminal rights rather than victims' rights.

The system impacts different lives in different ways. Maria Elena Morales of San Diego said she’s paying back $2,400 she owes a bail bond company.

“It’s a lot of money as a single mother, I don’t have that extra money,” she told NBC7 Investigates.

Morales signed a note to bail her friend out of jail but that friend never showed for his court date. He is still wanted on outstanding warrants.

“I felt ashamed, I should have known better but I didn’t,” Morales said.

Ashamed because Morales is an activist who works with prisoners returning to society. She admits she made a mistake in judgment but feels the court did too. In each case, she thinks, more information might have led to a different decision.

Providing more information about defendants to Judges is one of the main focuses of the ‘Pretrial Detention Reform’ study, organized by a group of California Judges.

The judges behind the study, along with the urging of the state’s Chief Justice Tani Cantil-Sakauke, recommended the state establish a new system based on an assessment of a defendant’s flight risk. The current system, the report concludes, “bases a person’s liberty on financial resources rather than the likelihood of future criminal behavior”.

“We must not penalize the poor for being poor,” Cantil-Sakauke said.

San Diego County is already testing an alternative system where monetary bail is not the primary basis for deciding who stays in jail. Judges receive a limited assessment of those charged prepared by the San Diego Sheriff’s Department.

Judges and attorneys NBC7 Investigates spoke with said the information is helpful but not complete.

Other counties are looking at other possible methods to replace their current systems. Both those in favor of and those opposed to the suggested reforms acknowledge California with its large counties with hundreds of judicial officers and its smaller counties with smaller judicial system face a challenge to find one system that fits all.

In reviewing the latest numbers available for the years 2014-2015, there were on average 2,814 un-sentenced prisoners or about 53% of the total jail population in San Diego every day, according to Human Rights Watch.

Human Rights Watch estimates it costs about $114.00 a day per prisoner, which would equate to about $321,000 dollars-a-day to keep un-sentenced prisoners here in local jails.

The presiding judge of the criminal courts in Los Angeles County, Scott Gordon was on the ‘Pretrial Detention Reform’ panel. Judge Gordon told NBC7 Investigates that a “better, fairer and a safer system” is needed.

That is the goal of reform for all of California courts he says. Gordon said not everyone agrees on how this should be done but something must be done.

“The process we have recommended here is to provide more information to judges so that when they make the decisions, they’re doing it with as much information as possible,” Gordon said.

This has resulted in proposed legislation, Senate Bill 10, which would provide among other things computer-generated risk assessments of each defendant to help judges decide if the defendant is a danger to the community. It’s being tweaked to find a compromise that will satisfy all the stakeholders in this game-changing overhaul of the state’s criminal justice system.

But for every suggestion for reform, there are counter concerns. For example, Human Rights Watch said using risk assessment tools are only as good as the information provided. The assessments could reflect a system “that is itself riddled with racial bias” the group says.

Judges like Kent Hamlin of Fresno County are uneasy about the Senate bill as proposed. Hamlin feels that experienced judges are capable of making the right decision.

“We’re releasing people every day under conditions other than posting bail,” Hamlin said. He sees the proposals as diminishing the role of the judge.

“We have a lot of options and we’re using them,” Hamlin said.

Hamlin is a member of the 500-member California based Alliance of Judges who support his position in opposition to Senate Bill 10 as currently written.

Not surprisingly so does the bail industry. NBC7 Investigates spoke with Bill Clayton, an attorney from Denver, Colorado who represents the American Bail Coalition.

“The argument is to deny the right to a monetary condition of a bail entirely is unconstitutional,” Clayton said.

Clayton said similar efforts in other states have gone poorly, adding it will have an impact on jail populations and will result in “higher crime and higher failure to appear”.

Judge Gordon counters this, saying bail reform is working in other states and in the end will improve the system by providing more information to judges.

“The current system that only looks at one factor, the financial ability to pay bail is not a fair system and doesn't provide the safety that should be provided to the citizens of California,” Gordon said.

Last month, California's Attorney General Xavier Becerra voiced his support for bail reform, saying the system is discriminatory towards poor Californians.

NBC 7 Investigates has been told by one of Senate bill 10's authors that the state bill is being reworked to create more support for the measure. It's set for review by the State Assembly Appropriations Committee later this year.